Fracking with Diesel Violated Law, EPA Says

Natural gas and oil drillers who injected diesel fuel into the ground during hydraulic fracturing broke the law if they didn’t have a permit from the U.S. Environmental Protection Agency (EPA), an agency official told a Senate panel today. According to The New York Times, those drillers could be subject to sanctions under the Safe Drinking Water Act.

As we’ve reported in the past, fracking, which involves injecting a mixture of water and chemicals into shale deposits under high pressure to release natural gas, is generally exempt from regulation under the Safe Drinking Water Act, except when diesel fuel is used. But according to The New York Times, the EPA had never bothered to clarify rules on diesel until a report published by the Environmental Working Group (EWG) early last year found confusion among state regulators about the diesel rules. The EWG also found that many wells were being fracked with diesel without the proper permits. Months after the EWG published its report, the EPA posted diesel rules on its website.

As we reported previously, the EWG report prompted the House Energy and Commerce Committee to initiate an investigation in 2010. The year-long probe found that drilling service companies have injected millions of gallons of diesel fuel underground during fracturing for natural gas. According to the Times, various companies acknowledged injecting a total of 10 million gallons of “straight diesel fuel” during fracking, and another 22 million gallons of fracking fluid containing at least 30 percent diesel. But apparently, the EPA had been in the dark about the use of diesel for fracking. An agency official told congressional investigators that EPA had assumed that the use of diesel had stopped seven years ago, the Times said.

In February, several Democratic members of the House committee, including Representatives Rep. Henry Waxman, D-Calif., Edward J. Markey, D-Mass., and Diana DeGette, D-Colo., wrote to the EPA asserting that any company that performs hydraulic fracturing using diesel fuel must receive a permit under the Safe Drinking Water Act.

Today, during a hearing before a Senate subcommittee, EPA Deputy Administrator Bob Perciasepe said drillers who didn’t have a permit for diesel were violating the law if they injected the fuel into the ground during fracking.

Also testifying at the Senate hearing was Pennsylvania Senator Robert Casey. As we’ve reported previously, Casey, a Democrat, recently reintroduced the FRAC Act in the Senate. The FRAC Act would end the hydraulic fracturing exemption to the Safe Drinking Water Act, and require mandatory disclosure of the chemicals used in fracking fluid.

“Our state went through most of the 19th century and half of the 20th century not getting it right, in this case with coal,” Casey said during his testimony, according to the Times. “Today, we have to get it right.”

Incidentally, the energy industry hasn’t reacted well to the EPA’s clarification of the diesel regulations. According to an article on the E&ENews PM website, industry groups have charged in legal actions that the agency changed the rules for hydraulic fracturing without notice or comment when it posted the diesel rules on its website last year. According to the report, the Independent Petroleum Association of America and the U.S. Oil & Gas Association filed the challenge before the U.S. Circuit Court of Appeals for the District of Columbia last August. The case has been referred to a “merit panel” of appellate judges.

For its part, the EPA maintains its actions didn’t constitute a change in rules, but simply a restatement of existing law.

“The information on EPA’s website is nothing more than a statement of law,” said an EPA statement to E&ENews PM. “Formal public notice and comment is not required because the Agency’s statements do not impose new legal obligations, it only summarizes a well-known, six-year old exemption made to the Safe Drinking Water Act.”